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Carl E. Woodward, L.L.C. v Acceptance Indemnity Insurance Company

Case No. 12-60561 (C.A. 5, Feb. 11, 2014)

This appeal presents the final set of issues arising from claims of negligent construction of a condominium project in south Mississippi. The remaining parties are a contractor and two insurers. The district court held that a subcontractor’s Commercial General Liability (“CGL”) insurer breached its duty to defend the general contractor. Disputed on appeal are the district court’s holding that there was a duty to defend, the allocations of costs and attorneys’ fees, the award of extracontractual damages but denial of punitive damages, a refusal to award pre-judgment interest, and the denial of permission to file a post-appeal motion for attorneys’ fees.

We conclude that the district court erred in holding that there was a duty to defend. The allegations in the complaint, even if properly supplemented by an engineer’s report that we will later describe, did not place the CGL insurer on notice of a claim under the policy. In light of that conclusion, the remaining appellate issues that concern the calculation and allocation of the costs of the alleged failure to defend are moot. We REVERSE and REMAND for entry of judgment for the subcontractor’s insurer.

BACKGROUND



Pass Marianne, L.L.C. contracted for the construction of condominiums on the Mississippi Gulf Coast. The general contractor was Appellee Carl E. Woodward. Among the subcontractors was DCM Corporation, L.L.C., who entered a contract with Woodward for the concrete work. In November 2005, DCM obtained a CGL policy from the Appellant, Acceptance Indemnity Insurance Co. DCM worked on the project from January to October 2006. The entire project was completed in August 2007. In October 2007, Pass Marianne sold the condominiums to Lemon Drop Properties.
 

 

Judge(s): Leslie H. Southwick
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Civil Procedure , Contracts , Damages , Insurance
 
Circuit Court Judge(s)
Emilio Garza
Catharina Haynes
Leslie Southwick

 

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insurer’s independent investigation establishes facts that would present a claim (w.d. wash. 2012) (finding that a construction defect, a heating system failure, a. section ii – who is an insured is amended to include as an construction defects were discovered and rectified prior to the date of substantial their contractual obligations to [pass marianne] in multiple cost language of this cgl policy. acceptance did not make that argument as a marianne in the arbitration and litigation. generally, an insurance company’s of fact.” corban v. united servs. auto. ass’n, 20 so. 3d 601, 609 (miss. 2009). property that must be restored or replaced because ‘your work’ was incorrectly no. 12-60561 we have previously quoted the policy language woodward relied on in its 11 but the underlying liability cannot be due to the “completed operations.” specifically excludes liability for property damage occurring after all work has occurred during ongoing operations, the only “damage” supported by allegation summary judgment. eventually, the district court conducted both a jury trial this appeal turns solely on the validity of the district court’s conclusion noble was listed as an additional insured on harris’s cgl policy, but the ins. co. of hartford, 75 so. 3d at 559. liability “arises out of” the primary those ongoing operations. it did not. woodward’s liability for breach of contract, such random and unfocused references that do not cite the record or relevant on august 6, 2007, subsequent to the policy expiration date. the only other identified section is pass marianne’s claim of a breach of neither “ongoing operations” nor “completed operations” is defined contract.2 no. 12-60561 reverse the finding that acceptance breached its duty to defend and the as matters “arising out of [dcm’s] ongoing operations.” the second limits the country lane const., inc., __ so. 3d __ 2013 wl 3884909 (miss. ct. app. july 30, 2013). encompass “completed operations.” id. at *4. the court rejected nobles of dcm’s ongoing operations of work for the condominiums.3 no. 12-60561 performance bond is a form of insurance that guarantees the completion of the concluded that if harris’s performance caused the damage for which noble was the covered operations has been completed; . . . . accrued when the owner began actual use or occupancy of the building – after construction was indemnity. for the fifth circuit unambiguous contracts are construed as written, discusses coverage of “faulty workmanship.” this appeal presents the final set of issues arising from claims of negligent policy. “the interpretation of an insurance policy is a question of law, not one sold the condominiums to lemon drop properties. no. 12-60561 case: 12-60561 document: 00512528684 page: 5 date filed: 02/11/2014 to defend the general contractor. disputed on appeal are the district court’s background clauses that are relevant to this appeal. section a provided that woodward was did not sufficiently raise the question of whether an “occurrence” was involved here. thus, coverage. id. additionally, with respect to the subcontract agreement between persuasive explications of state law. see howe ex rel. howe v. scottsdale ins. case: 12-60561 document: 00512528684 page: 17 date filed: 02/11/2014 the rimkus report claimed that dcm failed to comply with the construction judgment for a total award to woodward and gray of $999,144.79. the award on notice of a claim under the policy. in light of that conclusion, the remaining someone else’s property. the ‘your work’ exclusion prevents a cgl policy from liability does not arise out of completed operations. a duty to defend arose. that is an allegation that the completed building did not satisfy the terms of the acceptance, and now for us, is whether those claims created a duty to defend nor any related opinions, were cited or discussed in its briefs. see w. r. berkley corp. v. rea’s not arise out of dcm’s ongoing operations. the evidence relevant to waiver is to dcm’s ongoing operations, regardless of when the claim is filed, so long as the performed on it.” the memorandum then discusses evidence that the the course of construction, notwithstanding that the contractor might correct the completion. to apply this language to the argument being made on appeal, consequently, the court reversed and rendered judgment in favor of the insurer international dictionary 1576 (2002) (webster’s 2002) . . . . case: 12-60561 document: 00512528684 page: 16 date filed: 02/11/2014 predict how that court would decide the issue. paz v. brush engineered demand letter, namely, the additional-insured endorsement. it contained two no. 12-60561 one of the decisions relied upon by the district court simply for the principle that willful nature of said breach. 3 to liability arising out of ongoing operations that is very similar to the language after identifying woodward as an additional insured, limited coverage: such liability is assessed. mississippi state court against its seller, pass marianne, and against woodward. we review the district court’s factual findings for clear error. goodrum v. coverage of construction disputes § 1:2 (west 2013). this circuit has a report prepared by rimkus consulting group, which was employed by pass before garza, southwick, and haynes, circuit judges. violation of industry standards because the relevant claim here does not allege arbitration was the fault of the concrete subcontractor, dcm. recent mississippi decision on this issue, to which acceptance alerted us in a rule 28(j) letter, no. 12-60561 buffalo marine servs. inc. v. united states, 663 f.3d 750, 753 (5th cir. 2011). to defend. the allegations in the complaint, even if properly supplemented by no. 12-60561 case: 12-60561 document: 00512528684 page: 8 date filed: 02/11/2014 5 it follows that liability for construction defects, while the balcony floors were not properly sloped to allow proper drainage and after oral argument, acceptance raised a new issue under the policy. it summary judgment, applying the same standard as did the district court. courts have held, quite logically, that liability for construction defects clerk case: 12-60561 document: 00512528684 page: 11 date filed: 02/11/2014 insurance carrier, asserting claims that included bad faith breach of the november 19, 2013). noble real estate, inc. hired a subcontractor, harris, to a report pass marianne had commissioned from the rimkus consulting group 2 woodward was an additional insured under the cgl policy that leslie h. southwick, circuit judge: case: 12-60561 document: 00512528684 page: 3 date filed: 02/11/2014 we have already determined that pass marianne did not insured’s operations if it is causally connected to the primary insured’s plans and specifications and altered the blueprints in an attempt to no. 12-60561 cover up this problem; also stated: the court determined it was “clear from the language of the endorsement that states district court for the southern district of mississippi. by october 2010, conclusions about concrete subcontractor dcm were that it did not comply with dcm obtained a cgl policy from the appellant, acceptance indemnity liability arising out of the subcontractor’s “completed operations.” id. at 312. specifications. we do not include within the term any faulty workmanship in outside the policy’s coverage.” id. “construction defects” to mean workmanship not consistent with plans and edifice is complete.” webster’s new international dictionary 456 indemnify woodward in the arbitration. the case was removed to the united case: 12-60561 document: 00512528684 page: 9 date filed: 02/11/2014 united states court of appeals insured’s ongoing operations to fall within the scope of coverage, but the claims the noble decision relied in part on a colorado court of appeals opinion the design/build agreement or industry standards because the atrium floor was partially linked to the fill dirt beneath the slab. id. the purchaser sued noble, 6 under this particular policy. llc v. mid-century ins. co., 181 p.3d 309 (colo. app. 2007)). in weitz, five months after a subcontractor’s work was completed, the property owner observed perform dirt work and site preparation for a house it was building. id. at *1. there is no relevant decision from the mississippi supreme court, leaving us to noble was only an additional insured for liability caused by harris’s active work intentional conduct, not dcm’s ongoing operations. fraud and defamation involve intentional deficiencies is six years. miss. code ann. § 15-1-41 (west 2013). courts applying this statute and restated in the rimkus report did not arise out of dcm’s ongoing been briefed, acceptance, in one of its rule 28(j) letters quoted eight sentences “operations” as used in the policy is the plural of “operation.” 4 f i l e d [which] is going on: a: that [which] is actually in process . . . b: that any such defect.4 in the united states court of appeals carl e. woodward, l.l.c.; gray insurance company, [which] is continuously moving forward.” webster’s third new entire project was completed in august 2007. in october 2007, pass marianne therefore, we must respectfully deny your tender of defense and discovered, then the additional-insured endorsement would exclude coverage of refusal to award pre-judgment interest, and the denial of permission to file a besides sending the complaint with its letter demanding that dcm’s if any, flows from defects in the completed construction project. an aspect of the project that was dcm’s operational responsibility. 497 (5th cir. 2000). it is apparent from the face of the cross-claim that pass conclusion by the mississippi courts’ determination that claims arising from construction acceptance responded by letter on september 11, 2009. it refused to case: 12-60561 document: 00512528684 page: 10 date filed: 02/11/2014 later discuss relevant details of the complaint and the rimkus report. exclusions. for example, a recent mississippi court of appeals case closely of dcm’s ongoing operations or its completed operations. this determination is nonetheless, acceptance also argued that if property damage were later discussing a similar provision in an insurance policy. id. at *4 (citing weitz co., the elements of breach of contract in mississippi are: (1) the existence of a valid and damages. acceptance appealed, and woodward filed a cross-appeal. 14 id. at 313 (alterations in original; some citations omitted). because the whole or in part by [the subcontractor’s] ongoing operations performed for” the occupancy of the property – after construction was completed). duty to defend arises only if a complaint has been filed that contains allegations alleged ‘property damage’” the cross-claim asserts is for the non-conformity to case: 12-60561 document: 00512528684 page: 1 date filed: 02/11/2014 ownership of the property during construction means it was damaged regardless in summary, the insured was dcm, the concrete subcontractor who is not in non-conformity with plans and specifications and altered the blueprints in an no. 12-60561 water intrusion damage and sued the general contractor. weitz, 181 p.3d at 310- during the policy period.” titan indem. co. v. williams, 743 so. 2d 1020, 1024 in the policy. however, “ongoing” is generally defined as “that pass marianne was a defendant in the suit brought by lemon drop, both sections affect the scope of coverage offered by the additional-insured the work at the site of the “covered operations have been completed.” woodward was not an additional insured under the policy. see architex ass’n, inc. v. scottsdale ins. co., 27 so. 3d 1148, 1161 (miss. 2010). the state case: 12-60561 document: 00512528684 page: 18 date filed: 02/11/2014 only when damages occur during the policy period, there is no textual motions for summary judgment. the district court held that acceptance had a parties are a contractor and two insurers. the district court held that a it is true that woodward’s liability for the alleged damage is causally cross-claim nor the rimkus report ever identified damage relevant to dcm’s or to a final or intended condition; concluded; completed; as, the here, though. besides giving the words their plain and ordinary meaning, our 312 (holding construction defect liability was not covered under additional- lyle w. cayce unsightly trenches that were cut into the concrete to assist with drainage. requirement that liability arise during ongoing operations, only that liability this insurance does not apply to “bodily injury” or “property we review the district court’s conclusions of law, including the interpretation of insurer, gray insurance company, filed a new suit in october 2009 in plans and specifications that was discovered during construction and rectified. for entry of judgment for acceptance. no. 12-60561 furnished in connection with such work, on the project . . .to be after [all work] to be performed by or on behalf of the additional insured(s) at the specifications is a claim of a construction defect. there was not an attendant no. 12-60561 additional-insured endorsement. it excludes, as we quoted in full earlier, judgment for the subcontractor’s insurer. analyzed by the weitz court. further, acceptance’s additional-insured an engineer’s report that we will later describe, did not place the cgl insurer the mississippi gulf coast. the general contractor was appellee carl e. that claims for liability can be brought after ongoing operations are complete, february 11, 2014 architex of how to apply a policy provision regarding ongoing operations. drawings and industry standards by not installing a step in the slab at the mississippi substantive law governs this suit. the meaning of “arising out insurer, acceptance, and other insurers provide a defense, woodward also sent to defend, courts must overlay the language of the policy with the facts alleged operations were ongoing. though any non-conforming construction by dcm a defense until it appears that the facts upon which liability is predicated fall parsed the language of a cgl policy, finding that it was intended to cover of the work to the plans during ongoing operations with the need that liability damage” occurring after: though pass marianne did not mention dcm in this cross-claim, it did reference when pass marianne received the completed building. namely, that “liability” must arise out of “ongoing operations,” is improperly to a contract, de novo. in re liljeberg enters., inc., 304 f.3d 410, 439 (5th cir. it sought rescission and actual and punitive damages for breach of contract and v. transcon. ins. co., 358 f. supp. 2d 553, 562 (s.d. miss. 2005). insult, abuse, or negligence so gross as to constitute an independent tort.” eselin-bullock & we are persuaded by noble. both noble and weitz support the proposition insured, the following exclusion is added: exclusions occupant takes possession. see, e.g., reich v. jesco, inc., 526 so. 2d 550 (miss. 1988) (holding completed his work, noble sold the house. id. at *2. the purchaser noticed after all work has been completed. we interpret this endorsement as applying manifesting itself after harris stopped working on the site.” id. the court was composed of attorneys’ fees, the costs of arbitration, and extra-contractual ins. co. v. rjt const., llc, 581 f.3d 222, 226 (5th cir. 2009). necessarily arises from the completed construction, which is the point in time appeals from the united states district court arise out of ongoing operations. we have already explained why that liability two insurance products serve different ends. mississippi courts have recognized that the subcontractor did not build the foundation piers according to plans. additional-insured endorsement limiting coverage to “liability . . . caused in we have previously during dcm’s ongoing operations. we examine the memorandum. law that policy language providing coverage for “liability arising out of your the central issue in architex need not be addressed in our case. there was no discussion in states v. stalnaker, 571 f.3d 428, 439-40 (5th cir. 2009). acceptance waived acceptance’s additional-insured endorsement uses language limiting coverage pass marianne, l.l.c. contracted for the construction of condominiums on 2002). the parties agree that because acceptance issued the policy in created during ongoing operations, legally arises from completed operations. ongoing operations performed for that insured. discussion arises after completion. balcony exterior walls and doors. this problem allegedly caused damage to the from the claimed breach of the duty to defend. the district court entered a final we conclude that the district court erred in holding that there was a duty after acceptance and other insurers refused to defend, woodward and its endorsement. the first section establishes the broad parameters of the coverage because pass marianne’s claims fell outside the coverage of the additional case: 12-60561 document: 00512528684 page: 2 date filed: 02/11/2014 site of the covered operations has been completed.” interpretation would read the word “ongoing” out of the endorsement. id. at *5. 15 described problems with the finish of the concrete in the parking garage and 4 contrary conclusion bears noting. allowing coverage under this endorsement who in turn sought coverage under harris’s cgl policy’s additional-insured the claims pass marianne alleged against woodward in its cross-claim the district court concluded that certain issues could not be resolved on liable, the cause was harris’s completed work, not its ongoing operations. id. pass marianne’s breach of contract claim is related to dcm’s concrete work, case: 12-60561 document: 00512528684 page: 13 date filed: 02/11/2014 scattered over thirteen pages that discuss points relevant to such an argument. alleged failure to defend are moot. we reverse and remand for entry of 1 and that the violation caused damages. no. 12-60561 cutting and gouging ploys so as to entitle [pass marianne] to 10 quoted pass marianne’s relevant claim: “woodward built the foundation piers in summary, pass marianne’s cross-claim that dcm’s work did not case: 12-60561 document: 00512528684 page: 14 date filed: 02/11/2014 no. 12-60561 performed for noble. id. harris completed his work by march 2006, and then to defend woodward. we give de novo review to a district court’s grant of acts with no causal relationship to the ongoing concrete and construction work. v. chandeleur homes, inc., 857 so. 2d 748, 753 (miss. 2003). we cannot stop damage’ arises out of those operations; or . . . [t]hat particular part of any plaintiffs - appellees - cross appellants contractor’s liability for the water intrusion damage arose out of the defendant - appellant - cross appellee fees, the award of extracontractual damages but denial of punitive damages, a [woodward], but only with respect to liability arising out of your subcontractor’s commercial general liability (“cgl”) insurer breached its duty accordingly, harris’s insurer did not owe any contractual duty to defend or insured endorsement, acceptance had no duty to defend woodward. we work other than the non-conformity to the plans and specifications. attempt to cover up this problem . . . .” pass marianne then used these facts to (3) woodward built the foundation piers in non-conformity with additional insured. noble v. wellington assoc., 2013 wl 6067991 (miss. ct. app. support a claim that woodward and a subcontractor other than dcm had occurrence policy provides coverage “regardless of when the act complained of indemnify noble under the terms of the additional-insured endorsement. id. the mississippi court of appeals interpreted the phrase “ongoing acceptance indemnity insurance company, court has recently addressed the issue. when lacking a ruling from the relevant award of damages, attorneys’ fees, and costs. we remand to the district court 17 cracks in the house and an engineer determined there were foundation problems, one relevant section of acceptance’s summary judgment memorandum subsequent damage. regardless of this supplemental argument, neither the in sum, the claim for liability need not be alleged during ongoing holding that there was a duty to defend, the allocations of costs and attorneys’ 18 16 though not quoted in the september denial letter, the endorsement that made binding contract; and (2) its breach by the defendant. bus. commc’ns, inc. v. banks, 90 so. clause and was also excluded as “completed” work). here, the alleged breach is case: 12-60561 document: 00512528684 page: 12 date filed: 02/11/2014 of when it received the completed project. by this logic, a project owner could of contract, is determined after completion. this proposition is also supported specifications, effectively converts a cgl policy into a performance bond. these operations. even accepting the district court’s factual finding that damage had to dcm by the appellant acceptance “only with respect to liability arising out all insurers settled except for acceptance. woodward, gray and acceptance filed 8 pass marianne’s claims for fraud and defamation arise from woodward’s alleged coverage for any “property damage” that occurs after all work has been assoc. ins. agency, inc. v. nat’l gen. ins. co., 604 so. 2d 236, 240 (miss. 1992). of [an insured’s] ongoing operations” is the phrase in need of interpretation. 11. the general contractor later brought suit against the subcontractor’s “which potentially would be covered under the policy, the insurer must provide must be causally related to the ongoing operations. royer homes of miss., inc. woodward. among the subcontractors was dcm corporation, l.l.c., who [woodward] and [dcm], based on information presently available by contrast, “complete” is generally defined as “[b]rought to an end (1927) (emphasis in original) (webster’s 1927) . . . . refers to a different policy exclusion. it is one denying coverage for damage to discussed, namely, that no duty to defend woodward existed because liability did entered a contract with woodward for the concrete work. in november 2005, the district court held on summary judgment that acceptance had a duty no. 12-60561 acceptance does not dispute that the policy is an occurrence policy. an endorsement was limited to liability caused by harris’s “ongoing operations” action: work, deed.” webster’s 2002, supra, at 1581. the term on the site” and “equally clear the endorsement did not cover property damage insurance co. dcm worked on the project from january to october 2006. the case: 12-60561 document: 00512528684 page: 7 date filed: 02/11/2014 court unpacked the term “ongoing operations” as follows: and indemnity. woodward sent to acceptance the complaint in the lawsuit and operations performed for that insured,” woodward. second, section b stated claims were eventually arbitrated. one of the most significant issues in the was discovered or notice provided to the insurer, as long as the act occurred willful acts of the contractor woodward and a subcontractor. the question for co., 204 f.3d 624, 627 (5th cir. 2000). (43) [woodward], independently and through their subcontractor, insured the person or organization shown in the schedule interpretation must give effect to each clause. id. the additional-insured under the additional-insured endorsement. id. at 315. the conclusions drawn here are conclusions of law. the effect of a construction of a condominium project in south mississippi. the remaining court analyzed whether property damage, if caused by faulty workmanship, would be covered completed.); lampkin v. thrash, 81 so. 3d 1193, 1198 (miss. ct. app. 2012) (holding that argument that the phrase “caused . . . by [harris’s] ongoing operations” was a through counsel demanded on may 6, 2009 that acceptance provide a defense because of an allegation that the additional insured failed to follow plans and woodward disputes this conclusion, arguing that pass marianne’s subcontractor’s] ongoing operations,” also insured the general contractor against no. 12-60561 been completed. the damage alleged here arose from completed operations. have determined that claims accrue after the project is completed, often when the owner or 7 also alleged that the reasons for non-conformance were the intentional and has been completed.5 contract as a whole. on whether pass marianne’s claims ever identified an “occurrence” under the general contractor’s work on the project. see scott c. turner, insurance previously noted the significance of the difference between these two forms of ongoing operations. the issue is whether woodward’s liability arises out of operations” to refer to actions “actually in process,” concluding it could not the rimkus report relevant for purposes of determining whether acceptance for the southern district of mississippi ii. the complaint and the policy now a party. the endorsement stated that the general contractor, woodward under policy language requiring an “occurrence.” id. we discussed earlier that acceptance conform to specifications was supported by the rimkus report. the cross-claim (1) all work, including materials, parts or equipment iii. analysis of whether a duty to defend arose for gross negligence. pass marianne filed a cross-claim against woodward (miss. ct. app. 1999). while the plain language of the policy provides coverage woodward and gray claimed these defendant insurers failed to defend and completed. this provision must be given equivalent weight when reading the relevant “complaint.” the first part of the cross-claim that the parties identify problem before completing the project. rather, the caselaw we have discussed mississippi to a named insured who resided in and was a citizen of that state, woodward’s liability did not arise out of dcm’s ongoing operations. the breach submitted two letters under federal rule of appellate procedure 28(j) that focus in the complaint. see auto. ins. co. of hartford v. lipscomb, 75 so. 3d 557, 559 (miss. 2011). no duty arises when the alleged conduct falls outside the policy’s allege that the non-conforming concrete work led to any other damages while liability for such damages arises out of completed operations, for which by the insured contractor. see w.r. berkley corp., v. rea’s country lane constr. no. 12-60561 that cgl policies serve limited purposes based on their specific terms and we find no inconsistency and no waiver in either of these arguments. our as relevant is pass marianne’s allegations of the following facts: 3 damages, to include punitive damages due to the malicious and violated their contract with pass marianne in an intentional and willful manner, case: 12-60561 document: 00512528684 page: 15 date filed: 02/11/2014 specific issue in its briefs.1 endorsement excludes property damage occurring after all work has been indicative of what was not briefed is that neither of the precedents relied upon in a materials, inc., 555 f.3d 383, 392 (5th cir. 2009). mississippi’s intermediate after quoting the foregoing policy language, the letter from acceptance after realleging the foregoing facts, it stated as follows: case: 12-60561 document: 00512528684 page: 6 date filed: 02/11/2014 jurisdiction’s highest court, we will examine decisions of lower courts for 2 exterior walls of the condominium units. the rimkus report also concluded that woodward an additional insured also contained this exclusion: caselaw are insufficient briefing to preserve an issue for our review. united to support that the issue of “occurrence” had earlier 3d 1221, 1224-25 (miss. 2012). a tortious breach additionally requires an “intentional wrong, work,” requires only “a causal connection to ‘your work.’” roy anderson corp. such as was alleged here, depends on other policy language. we will discuss how 9 issue is not whether dcm failed to comply with plans and specifications during “operation” is generally defined as “a doing or performing esp. of an insured, “but only with respect to liability arising out of your [dcm’s] ongoing assert a breach of contract claim against a contractor for any error made during before the intrusion – rather than its ongoing operations, there was no coverage (who along with its insurer is the appellee here), could draw on the policy issued all claims of bad-faith, acceptance stated that the relevant damage occurred causal limitation to coverage rather than temporal, concluding that i. duty to defend – preliminary points not properly sloped, which prevented water from entering the drains properly. 13 the mississippi statute of limitations period for actions arising from construction 5 v. additional-insured endorsement, which extended the subcontractor’s liability of conduct covered by the policy. lipscomb, 75 so. 3d at 559. nonetheless, if an operations); absher const. co. v. n. pac. ins. co., 861 f. supp. 2d 1236, 1250 performed by or on behalf of the additional insured(s) at the site of operations. by that we mean that claims need not be asserted during the named related to dcm’s operations. though a causal relation is required, the policy was excluded from coverage because it fell outside the “ongoing operations” for our analysis, we assume without deciding that lipscomb would make fifth circuit defective design and construction claims arising from the collapse of a chicken house roof because the claims did not trigger the duty to defend. on the other hand, a inc., __ so. 3d __, 2013 wl 3884909 (miss. ct. app. july 30, 2013). jim wallis and son roofing, inc. intentionally and willfully violated insurance: “a cgl policy generally protects the insured when his work damages mississippi state circuit court against acceptance and several other insurers. to us, the substantial completion of the subject property occurred a year after purchasing the condominiums, lemon drop brought suit in the mississippi court of appeals discussed the meaning of a cgl policy’s the property “on which you . . . are performing operations, if the ‘property making the cross-claim pass marianne filed against co-defendant woodward the defects accrue, for statute of limitations purposes, after the construction project alleging faulty construction and damage arising out of the construction. the arises out of a subcontractor’s completed operations. see weitz co., 181 p.3d at count iii. bad faith/breach of contract marianne’s claims for fraud, defamation, and breach of contract did not arise out of [dcm’s] ongoing operations performed for that insured,” i.e., woodward. which stated conclusions about the nature and effect of the defective work. we would have occurred during its ongoing operations, liability for defective work, had a duty to defend woodward. the rimkus report was lengthy. its parties’ contractual agreement. accordingly, even if woodward’s liability for appellate issues that concern the calculation and allocation of the costs of the scope of coverage, specifically excluding property damage that occurs after all insured endorsement because it arose out of subcontractor’s completed woodward also argued that acceptance waived the argument we just quarterman, 547 f.3d 249, 255 (5th cir. 2008). acceptance issued to dcm. after pass marianne asserted its claims, woodward that in its memorandum in support of a partial summary judgment to dismiss said to constitute waiver is in an argument about the exclusion located in the coverage to the general contractor only against liability “arising out of [the we are to apply mississippi rules of construction to our interpretation of the operations. see, e.g., mid-continent cas. co. v. swift energy co., 206 f.3d 487, the other part of acceptance’s summary judgment memorandum that is noble built a house on the site. more than a year and a half after harris had and a bench trial as to different issues involving the financial burdens arising endorsement also includes a specific exclusion for property damage occurring insurance contract. id. at 311. the colorado court considered whether the b. with respect to the insurance afforded to the additional governed by the facts alleged in the complaint or, as here, in cross-claims. auto. with reference to the plain meaning of words through dictionary definitions, the supports that the liability for a construction defect, and any consequent breach that the policy “does not apply to ‘bodily injury’ or ‘property damage’ occurring no. 12-60561 the issue through inadequate briefing on appeal. fed. r. app. p. 28(a)(8)(a). morphing into a performance bond covering an insured’s own work.” wilshire case: 12-60561 document: 00512528684 page: 4 date filed: 02/11/2014 equate the damage that the cross-claim described as being the non-conformity accordingly, the central issue is whether woodward’s liability arose out that acceptance had a duty to defend. we will discuss no other issue. pass marianne’s allegation that the foundation piers did not conform to breach of warranty in construction of personal residence claim accrued on the date of ____________________________________ defend woodward based on language in the following policy endorsement, which, duty to defend woodward. allegation that the non-conformity caused other damage. we will use the term is the construction that was not in conformity with plans and specifications. we now compare the complaint and the policy in order to analyze whether arise out of ongoing operations. we agree with a decision applying mississippi 12 no. 12-60561 subcontractor’s completed operations – the work was completed five months accidental occurrences during construction, not intentional actions undertaken endorsement. id. at *3. under mississippi law, when determining whether an insurer has a duty completed. acceptance repeats its earlier argument that “most, if not all, of the post-appeal motion for attorneys’ fees.


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